That is the essence of the finding in Skillen v State of New South Wales; Fuller v State of New South Wales; Fuller-Wilson v State of New South Wales [2017] NSWDC 342 (28 November 2017).
Keith Arthur Wilson was killed in motor vehicle accident on 18 June 2013. His body was severely burned in the accident. Police attended and took control of the accident site and arranged for Mr Wilson’s body to be removed from the accident scene by government contractors.
On 14 February 2014 (8 months after the accident) Mr Wilson’s wife, along with two other family members, attended the accident scene. There they discovered ‘part of a foot and ankle and clothing containing the deceased’s melted remains…’ As a result of discovering the remains and clothing at the scene, that the Plaintiffs suffered psychological harm. They sued the state of New South Wales as the appropriate defendant when claims allege negligence by police (a claim against NSW Ambulance was discontinued).
The plaintiffs argued that the police had taken control of the site by virtue of provisions of the Coroners Act 2009 (NSW) (see Body recovery, the police and the SES in NSW (December 29, 2012)) and the State Emergency and Rescue Management Act 1989 (NSW). They argued that failing to ensure that all of Mr Wilson’s remains were collected from the accident site, the police failed to take reasonable steps to protect them from the foreseeable risk of psychological injury.
The essential elements of any negligence action are that the defendant owes the plaintiff a duty of care, fails to exercise reasonable care and that as a result the plaintiff suffers a compensable injury. The defendant, ie New South Wales, argued that the plaintiff’s claim revealed no cause of action, that is the case as pleaded was doomed to fail, and that therefore the court should dismiss the claim without trial. Hatzistergos DCJ agreed (“DCJ” means ‘District Court Judge’).
Whether or not a defendant owes a plaintiff a duty of care is a complex legal question. That it is foreseeable that the actions of the defendant may cause harm to the plaintiff is a necessary element but it is not sufficient, on it’s own, to show that a legal duty of care exists. In Caltex Refineries (Qld) v Stavar [2009] NSWCA 258, Allsop P reviewed the law to come up with a list of ‘salient features’ that may be relevant in deciding whether a duty of care exists. That list went from paragraph (a) to (q), ie 17 separate issues. And it was conceded that the list wasn’t complete, there may be more! (For the list and a more detailed discussion, see Distributing warnings via Facebook and potential legal liability (November 16, 2014)).
There are many cases that recognise police do not owe a duty of care to individuals, starting with Hill v Chief Constable of West Yorkshire [1989] AC 53 where police were not liable for failing to detain a suspect who later killed a family member of the plaintiffs. This case has been approved in Australia: Sullivan v Moody [2001] HCA 59, Cran v State of New South Wales and Another [2004] NSWCA 92 and Australian Capital Territory v Crowley [2012] ACTCA 52 (and see No liability for police shooting (February 13, 2013)). Police are given wide discretion as to how to undertake their many tasks, how to allocate resources, how to set priorities etc and that would be constrained if they owed a duty of care to individuals. If police diverted resources to investigate a crime that had a higher priority, then the victim of the lower ‘priority’ crime could sue etc. These results would impose too many constraints on the decision of police. Further police detect and investigate crimes (and deaths) for the public good not necessarily for the benefit of the victims of those crimes. Police can and do prosecute crimes where the victim doesn’t want them to, and they investigate deaths, like Mr Wilson’s to assist the coroner in his or her functions. The public nature of policing does not suggest that their action (or inaction) should give rise to private rights to sue. (I note here that this is similar reasoning that has led to findings that fire brigades don’t owe a duty of care to individuals as their actions are for the public good – see for example ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014) and No liability for Yarnell (Arizona, USA) fire (April 3, 2017)).
At [41]-[42] the judge said:
In my view … the law ordinarily would not subject police conducting investigations or exercising powers in the public interest to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting obligations… [Further] unless extraordinary circumstances or a special relationship of control or assumption of responsibility has been created, courts will not impose a duty in negligence on the police in the investigation and prosecution of crimes for various policy reasons.
Although the police were in control of the accident scene they did not control the accident nor had they taken control as they would if they had arrested someone. Police do owe a duty of care to a person in their custody but that was not the sort of control that was being exercised here (see [45]). The judge went on to say (at [53]-[55] and [58]-[59]):
It can be accepted that police were acting in their public duty in going to the site with a view to protecting passers-by from the danger of the scene. It can also be accepted that as part of the coronial investigation scene order the police exercised functions that include seize and detain all or part of a thing that might provide evidence and taking possession of the remains and property of the deceased. The statutory premise for these functions involved the exercise of discretion. No argument was presented that the terms, scope or purpose of the statutory regime erected or facilitated a relationship that in all the circumstances displayed sufficient characteristics answering the criteria of intervention by the tort of negligence. In the case of the function of collecting the remains and property of the deceased it was for the purposes of the coronial investigation. The width of the class of persons for whose benefit those duties were exercised (being the public at large) is a factor against recognition of a duty of care specific to the Plaintiffs.
There is no allegation that the police controlled the scene at the time the Plaintiffs visited the scene some eight months later.
The police had not created the risk of harm and did nothing that increased the risk…
Nor did police assume any responsibility towards the Plaintiffs as individuals…
The case in my view is far removed from the kind of relationship which could invoke an implied assumption or undertaking of responsibility found in cases such as solicitor and client; teacher and pupil; and, banker and customer.
To reiterate, the police were performing their functions, including body recovery, for the public good, not for a private right and that suggested that here was no duty owed to individuals that would allow them to sue.
Another issue is the plaintiff’s vulnerability to harm. The plaintiffs were more likely to suffer psychological injury by finding their loved one’s remains than a stranger, but with respect to the police, if they owed a duty to the plaintiffs they would owe a duty to everyone who might stop at that scene. ‘[T]here was nothing in the relationship between the Plaintiffs and the police that place them in any different position to that of other members of the public who subsequently attended the scene’ ([63]). Courts are reluctant to find a duty of care that would be owed to the world at large.
Police only have the resources they have. It is not possible to sue a public authority for the decisions it makes in how to allocate resources (Civil Liability Act 2002 (NSW) s 42). The plaintiffs alleged that the police were under a duty to ensure complete body collection in order to protect them from injury. Hatzistergos DCJ said (at [64]):
I accept that the police were responding to an emergency requiring them to assist in the coordination of the scene of the accident, investigate the circumstances of the accident including speaking to the driver of the other vehicle, identify the deceased and control surrounding traffic. All of those functions need to be considered in determining whether a duty of care arises; not just the function of preserving and collecting evidence at the scene being the matter to which the proceedings relate
Further (at [65]):
Police officers are charged with the primary responsibility of detecting and preventing crime such as to improve the general welfare of all members of society. When the NSW police attended the scene of the accident in the present case, their task was not only to remove the body from the scene, but to investigate the circumstances of the accident (including whether the driver of the other vehicle or the deceased was at fault as well as the identity of the deceased) and manage the emergency created by the accident… To impose the duty contended for which would require the NSW police officers attending the scene to devote additional resources in scanning the area to make sure that all the debris at the scene of the accident was removed would divert police from their statutory duties and obligations as defined in s 6 of the Police Act and set out above as well as their common law duty to enforce the criminal law.
That is police would be forced to divert resources to clearing the scene and not on other tasks such as the investigation of the cause of the accident. It is not for a court considering the law of negligence to dictate priorities to police in the conduct of their investigations and public safety duties.
His Honour concluded (at [68]):
I am satisfied that … the case pleaded is such that it is not reasonably arguable that a duty of care was owed by police to the Plaintiffs.
Accordingly the case was dismissed without trial.
Other cases.
There have been other cases with similar results relating to emergency response rather than criminal investigation.
In State of NSW v Tyszyk [2008] NSWCA 107 Campell JA found that NSW Police did not owe a duty of care to a person who was injured when a down pipe fell on him, even thought police had been responded to the scene because of concerns of safety.
In NSW v Brown [2003] NSWCA 21 a van containing an adult woman and her four children left the road and collided with a power pole. The woman was thrown from the vehicle and became unconscious. Rescuers safely removed the three eldest children and the mother was taken to hospital. However, despite inspecting the interior the police did not discover a 7 weeks old baby who had not been secured in a baby capsule and was lying injured and unconscious under the rear seat. When the police became aware that there was a missing child they contacted the tow truck driver who searched the van and found the baby. As a result of finding the injured baby the driver suffered a psychiatric illness and sued the police for negligence. On appeal Handley JA (with whom Giles and Hodgson JJA) agreed) said (at [22]):
In my judgment the Judge erred in law in holding that the police had a statutory duty “as well as a commonsense duty to locate all persons who are injured in motor vehicle accidents”. There was no statutory duty and the common law duty was not absolute.
Discussion
To dismiss a case without trial is unusual and it may be that the plaintiffs will seek to appeal that decision to the Supreme Court. The district court is not a superior court on the judicial hierarchy and the decision does not set a precedent in the way the decision of a Court of Appeal or the High Court does (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) but even so rescuers may find the decisions reassuring – confirming again that the courts do recognize the complexity of emergency response and that emergency services operate primarily for the public good.
Australian Emergency Law 
This is why I carry cheap tarps in my private, contractors kit and shire ranger vehicles I work out of.
I’m not sure I understand that comment of why the fact that the police didn’t owe a duty of care is why you carry cheap tarps?
To cover any “unpleasantness” that include persons and animals from view.
To me, this case is similar to many situations where Police want total control, but when an issue is raised, throw excuses to wriggle their way out.
Give the job of ‘total debris clearance’ to the SES.
Typical response of heartless Govt. authorities, to dismiss the trauma suffered by the family …..
The post and information doesn’t include who was the agency retrieving the body. NSW is a plethora of silo agencies task with various rescue roles…too often geographically identified/responded..not risk nor best equipped and best agency response model..be it full time, part time or volunteer. This case should be a part of the amalgam that forces a government with testicles to tackle the silo agencies bullshit that is rescue in NSW.
The agency ‘retrieving’ the body was NSW Poice, regardless of whether they were assisted by anyone else. If you mean wete SES, VRA, NSWF&R or NSW Ambulance on scene as rescue the case doesn’t say, and it doesn’t matter. I can’t see yhat this case, given the state won, will cause any government to do anything. This was a win in the district court, It won’t be a blip on ‘the government’s’ radar.
1-” If police diverted resources to investigate a crime that had a higher priority, then the victim of the lower ‘priority’ crime could sue etc. These results would impose too many constraints on the decision of police. ” and 2- “The public nature of policing does not suggest that their action (or inaction) should give rise to private rights to sue “.
I understand the reasoning behind this(1), to weed out a lot of ‘petty disputes time wasters’ eating up Police resources . I also appreciate the need for some discretionary powers, but those wide ranging discretionary powers and Police inaction (2) also has consequences for people that at some point surely must be a breach duty of care?
That same wide discretion also appears to leads to conflicting and confusing advice given by Police, (or perhaps it’s their personal interpretation)
For example, I was once told during a general discussion with a P/O to report incidences including threats no matter how irrelevant it felt ,(in an avo case not involving myself) so if nothing else there is a record of repeated instances that may indicate a pattern of sustained harassment. I could see merit in that advice at that time.
Fast forward, I found myself involved with an unfortunate position of harassment (one with witnesses) and the second was an instance of a direct threat so, with reluctance, the Police were approached with thinking there would at least be file notes initiated .
The officer declined to make any file notes or take a statement ( but did tell me it was a very busy time of year and that often reporting things escalates a situation) .
She said ‘perhaps, if they weren’t too busy’ they could get a wagon out to speak to the individual and ‘hopefully’ the situation wouldn’t escalate to the point I was in court making an avo next week . Despite the potential seriousness of it all, I managed to find humour in the response I received, especially the “hopefully”. (she looked a bit ‘over it’ all tbh).
The point is, so if a third incident occurs and then reported, how can any reasonable case be established if there is a reluctance to record previous events? Seems a bit ‘daft’ to me.
Wide discretion could also be called ‘personal discretion’ it seems .
As an aside, I wonder if there is a perception that nurses have an increased duty of care vs fire/police officers?
(ps: very interesting blog/wordpress, appreciate the ‘laymans’ type of writing without being overloaded with technical legal terminology)
Police do have discretion as does everyone. If police are reluctant to record details, my advice is to put the details in writing and send that to the police. For example I had a mobile phone stolen and could read from my account, the numbers that the thief had called. The (London) police did not want to follow that up. If I left it at that then I made the decision as to what they should do. Instead I sent the details to the police officer. No doubt he still did nothing (let’s face it, it’s pretty insubstantial and common crime to have your pocket picked in Trafalgar Square) but at least he had to make the decision that it was not worth pursuing, not me. If the police haven’t recorded previous details but you’ve sent a letter or email, then there is a record.
As for nurses they are in a very different situation. Nurses provided nursing care to individuals- albeit within the limits of the health system but they do not provide nursing services to the community in the way police ‘police’ the community or fire fighters take action to stop the spread of fire for the benefit of the community rather than the individual. Nurses do owe a duty of care to their patients as police do to, for example, prisoners in custody.
As the eldest daughter of the late Mr Keith Wilson … [I say that] our (his 4 biological children’s) dealings with NSW police, and NSW Coroner’s office, over a 12 month period of the accident investigation we were treated with the utmost respect, compassion and supported with offers of trauma counseling services. So respectful was the coroners office that they called us directly after Dad’s body was released to say ‘ your Dad is on his way back home now, after the funeral director paid for by Dad’s employer had picked him up. To NSW Police, and to The Coroners’ office thank you for your compassion to Keith Wilson’s children, his brothers and his sister, and their families . Police and everyone involved in accident investigations from first responders, to coroners deal with trauma on a daily basis. Their job is hard enough without dealing with people that have a sense of entitlement. One day Dad, they’ll let you rest in peace.
This decision was OVERTURNED on appeal – so it has been held to be incorrect
Fuller-Wilson v State of New South Wales [2018] NSWCA 218
The appeal and its legal consequences are discussed at https://emergencylaw.wordpress.com/2018/10/04/do-police-undertaking-body-recovery-at-a-motor-vehicle-accident-owe-a-duty-of-care-to-the-victims-family/